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July 1, 2007 - Daily Herald (UT)

Editorial: Court Teaches Kids Bad Lesson

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The John S. and James L. Knight Foundation warned that our children don't fully appreciate or respect the rights protected by the First Amendment.

The foundation released a national study in 2006 that showed nearly half the students surveyed believed that the First Amendment went too far in the rights it guarantees, and 46 percent believed that newspapers should not publish stories without government approval.

The report blamed educators for not doing a better job of teaching students how essential free expression is to our system of government.

Unfortunately, the U.S. Supreme Court doesn't help matters when it renders decisions like last week's Morse v. Frederick. In that decision, the high court ruled 6-3 that schools can punish students for uttering what could be perceived as messages advocating drug use, even if they do it off campus.

The case began in 2002, when the Olympic Torch Relay was making its way through Juneau, Alaska, on its way to Salt Lake City for the 2002 Winter Games. Students at Juneau-Douglas High School were allowed to leave class and watch as the Olympic Flame passed in front of their school.

Joseph Frederick, then a senior, was across the street from the school and held up a banner proclaiming "BONG HITS 4 JESUS" as the runners passed the school.

Principal Deborah Morse went over and ordered the banner taken down. Frederick refused and Morse confiscated the sign and later suspended Frederick for 10 days. Morse said the sign clearly advocated marijuana smoking, making it a violation of school policy.

Frederick argued that the sign did not advocate anything. It was merely "nonsense" designed to catch the eye of TV camera crews covering the event. He said that taking the sign and suspending him violated his constitutional rights to free expression.

A federal court initially ruled in Morse's favor but its decision was overturned by the 9th Circuit Court of Appeals, prompting Morse and the school district to appeal to the Supreme Court, with Kenneth Starr, the former special prosecutor whose investigation led to President Clinton's impeachment, representing Morse and the district. Frederick received support from a variety of groups, such as the conservative Rutherford Institute and the American Civil Liberties Union.

Roberts, writing for the court, declared that students' free-speech rights are not trampled when schools restrict pro-drug messages.

"We hold that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use," Roberts wrote.

It is also reasonable to conclude that this decision tells teens that the right of free expression does not apply to them and further inculcate them in the belief that First Amendment freedoms are inherently dangerous and should be curtailed.

First, it's hard to see how anyone could interpret Frederick's banner as encouraging his fellow students to use marijuana. One could just as easily interpret the banner as an endorsement of Christianity since it invokes Christ's name. Most people would put Frederick's banner right up there with the nonsense signs people wave to get on TV at sporting events.

While the school claimed that the Olympic Torch Run was a school activity where all school rules applied, Frederick was not on school property nor had he reported for class that morning. Would Morse have stormed across the street and torn down the sign if non-students were holding it up just to get their mugs on TV? Roberts' decision seems to tell kids that they shed their First Amendment rights on either side of the schoolhouse gate.

Nor is the decision as narrowly drawn as Roberts' opinion would suggest. It creates an opening for censors to shut down student speech, just as the court did nearly 20 years ago in Hazelwood v. Kuhlmeier. In Hazelwood, the court said school principals could censor student publications for educational purposes. Censorious principals have stretched "educational purposes" far beyond the breaking point to block stories that about air pollution from school bus garages and criticism of a school football team. That decision has turned many high school papers into nothing more than feel-good public relations packets instead of a training ground for future journalists.

A prohibition on "pro-drug advocacy" could be likewise contorted to squelch more than just someone openly advocating drug use, as one justice warned.

"What about a conversation during the lunch period where one student suggests that glaucoma sufferers should smoke marijuana to relieve the pain? What about deprecating commentary about an anti-drug film shown in school? And what about drug messages mixed with other, more expressly political content?" Justice Stephen G. Breyer asked in his dissent.

The potential for abuse is high when it is a bureaucrat, not the speaker, who determines what the message means, and a student can be punished for statements made off campus.

But the worst thing is that the court has eroded an inalienable right for young Americans. Supporters of such censorship argue that children do not know how to responsibly exercise the right of free expression, and need "guidance" before they can use it fully. Such people do not understand the First Amendment's guarantee.

So-called "responsible" speech usually needs no protection, since it reflects the majority opinion. It is the dissenting voices, the devil's advocates and the free thinkers that require protection from the tyranny of the majority. Such speech promotes debate, which eventually leads to the truth, while silencing it keeps us in the darkness of ignorance and doomed to making bad decisions.

"If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind," John Stuart Mill, a 19th century British philosopher, said. Unfortunately, the Morse and Hazelwood decisions are teaching children that it is OK to silence a contrarian opinion in school, and these students will likely take that attitude with them into the marketplace of ideas as adults. That would be disastrous for the country.

Students learn math by doing equations and science by conducting experiments. So why not allow them to learn free speech by exercising it? Will kids make mistakes and say outrageous things? Of course, but so do adults. Just listen to talk radio or read Internet blogs. The genius of free expression, as Thomas Jefferson pointed out, is that errors of opinion are tolerable as long as truth is free to respond.

Until the Supreme Court decides to revisit this decision, we hope educators will resist the temptation to censor students and let them learn to exercise this great American birthright.

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